Wemabod Estates Ltd. V. Joyland Ltd (2001)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

This appeal is against the ruling of Rhodes-Vivour J. of the Lagos State High Court delivered on 14/2/97 No. CA/2/97 quashing the judgment of Senior Magistrate Grade 1 delivered on 24/10/96 in Suit No. MCA/1654/96 together with warrant of possession dated 6/11/96.

The appellant, as plaintiff in the Magistrates’ Court claimed for possession, arrears of rent and mesne profit in respect of the premises known as NO.12 – 14 Ashanti Street Apapa, Lagos State. The case was undefended and judgment was given in favour of the plaintiff and execution of warrant of possession was carried out.

The respondent thereafter brought an application in the High Court for order of certiorari to quash the judgment of the Senior Magistrate Grade 1, including the warrant of possession on the ground that the court exceeded its civil monetary jurisdiction of N15,000 in respect of annual rental value of the said premises.

The High Court granted the order of certiorari and quashed the judgment of the Magistrate Court.

The appellant was dissatisfied with the ruling and gave notice of appeal filing originally three grounds of appeal, ground two of which was later abandoned. The appellant gave notice to discontinue the notice of appeal dated 30/4/97 pages 75 – 78 and 21/11/97 (page 90- 92) of the records. This appeal shall therefore be argued only on the notice of appeal dated 14/2/97. Grounds 1 and 3 of the notice of appeal read as follows:

“GROUND 1”

Error of Law:

The learned trial Judge erred in law when he evaluated the affidavit evidence improperly or wrongly and concluded that the allegation of fraud was not particularised and proved.

Particulars:

1. In paragraph 5 of the affidavit in Support of the motion to set aside the ruling dated 14th February, 1997 it was pleaded that the contents of the affidavit in support of the motion Exparte and motion on notice were not the same and that the contents are different and meant to deceive and mislead the court and actually deceived and misled the court”.
2. In paragraph 7 of the respondent motion for certiorari and paragraph 7 of the motion Exparte the facts stated therein are the same except for the exhibits that were surreptiously substituted.
3. In paragraph 7, it was pleaded that the exhibits A1 and A2 utilised on the motion exparte were in cheque and a covering letter.
4. In paragraph 9 of the affidavit it was stated that the exhibits A and A2 utilised on notice had been changed to copies of the summons for possession as against the cheque and covering letter utilised on the Exparte.

In paragraph 14, it was stated “that though the cheque was made payable to the 1st respondent/appellant, it was drawn by one Dr. M.A. Okunyade, executive chairman, M. A. Okunyade and Sons limited and not Joyland Limited, the applicant/respondent.

1. In paragraph 15 and 16 it was stated that the cheque stated above was fabricated and that it was not shown by the applicant/respondent that it was cashed by or received by the applicant/respondent.
2. That the applicant/respondent did not file a counter affidavit to the material allegation of fraud and concealment of material facts as demonstrated above.

GROUND 3:

Error of Law:

The learned trial Judge erred in law in refusing to set aside his ruling dated 14th February, 1997 despite the litany of superior authorities cited for his consideration in that in an application for certiorari, an applicant is under a compulsion to use the same set of affidavit and exhibits both in motion exparte and in motion on notice.